1985 PLP 2101 (CLC)

SALEEM AKHTAR, J.--The petitioners have challenged the orde passed by the learned Senior Civil Judge Nawabshah disposin application under Order XXXIX, rules 1 and

2. C.P.C. in two cougeor suits filed by the parties against each other. The petitioners Nos"' and 5 filed a suit against the respondents Nos. 3 and 4 in respect or the property bearing Survey No. 80/3, 147/1,147/1A, 147/2, 155/3 end 159/2 situated in Deh 21 Dadh Taluka Sakrand, District Nawabshah, They alleged that the property was transferred to the respondent No' 1 by the Settlement Authorities, which is looked after by respondents Nos. 3 and 4 and they (the petitioners Nos. 4 and 5) are the recorded Haris of the land for the last 9/10 years. It was stated that earlier Khadim Khichi was the lessee, and thereafter respondent No. 5 became the lessee whose lease had expired. The respondents Nos. 3 and 4 have sold the survey No. 80/3 to the respondent No. 5 and in order to defeat their right of pre-emption they want to eject them forcibly and illegally. It was therefore, prayed that the respondents Nos. 3 and 4 may be restrained by permanent injunction from interfering with their cultivating possession or forcibly ejected them from the disputed land except in due process of law. The petitioners Nos. 4 and 5 also filed an application under Order XXXIX, rules 1 and 2, C.P.C. seeking similar interim relief. The respondents Nos. 3 and 4 resisted the action and pleaded that the disputed land was leased out to the respondent No. 5, but after the expiry of lease, he handed over possession to these respondents, and they have cultivated the Kharif crop. It was denied that the petitioners Nos. 4 and 5 are the Haris, or in possession thereof. They termed the action as collusive and male fide at the instigation of the respondent No.

5. They also referred to the F.I.R. lodged by ,the respondents Nos. 3 and 4 against the petitioner. The counter-case being Suit No. 92/78 was filed by the respondent No. 1 against the petitioners Nos. 4 and 5 and respondent No.

5. The same facts have been stated in the plaint, and it was alleged that the respondent No. 5 has handed over possession of the land except Survey No. 80/3. The respondent No. 1 prayed for permanent injunction against the petitioners Nos. 4 and 5 and respondent No. 5 restraining them from interfering with her possession. An application under Order XXXIX, rules 1 and 2, C.P.C. was filed by him and interim prayers in the same terms were sought. The learned Ist Additional District Judge IN Senior Civil Judge Nawabshah by order dated 29-5-1978 allowed the injunction application filed by the respondent No. 1 and the petitioners Nos. 4 and 5 and respondent No. 5 were restrained from interfering with the possession of the respondent No.

1. The learned trial Court has taken note of the fact that prima facie it was established that the petitioners Nos. 4 and 5 and respondent No. 5 had delivered possession of the land to the respondent No.

1. This order has been challenged in this petition. The matter came up for hearing of application under Order VI, rule 17, C.P.C. on 31st January, 1985 for amendment of the petition in view of the fact that Suit No. 92/78 filed by the respondent No? I has been decreed on 31-3-1982. After hearing the parties by the following short order the petition was dismissed:- "This matter came before us for hearing of an application uncle! Order VI, rule 17, C.P.C. The petition was initially filed it's 1978, and 7 years have already gone by. This application opposed and looking to the circumstances that the suit out of which the cause of action arose has also been disposed of by the trial Court, and the further reason that the impugned Order being an order refusing to grant an injunction was appealable but appeal had not been filed, we have heard the Advocates on the main issue involved in this petition. Upon hearing we are of the view that this petition besides being not maintainable, has also become in fructuous by reason of the main suit, having been disposed of by the Civil Court in favour of the respondent. In these circumstances, we dismiss the main petition. Detailed reasons shall be recorded later." The petitioner has challenged the order passed by the learned trial Court under Order XXXIX, rules 1 and 2, C.P.C. During the pendency of the petition the main suit has been disposed of deciding the entire dispute between the parties. The impugned order passed by A the learned trial Court has thus merged in the judgment and decree passed in the suit and there can be no justification in law to keep the petition pending for determining the legality of such interim order. If the petitioners had any grievance against the judgment passed by the learned trial Court they could have filed an appeal as provided under law. In these circumstances as the main suit has been disposed of by judgment and decree of the Court and remedy provided under law has not been availed by the petitioners, they cannot seek relief against the interim order. Besides this, it is to be noted that against the impugned order an equally efficacious remedy is provided by the Code of Civil Procedure which admittedly has not been availed. The petition is therefore dismissed. H.B.T.????????????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.